Litigation anxiety -- a rising tide

In a recent survey by the Australian Medical Association, doctors expressed concerns about judges dictating clinical practice, expert witnesses of doubtful ability and a perception that medical litigation was on the rise.¹ A recent survey of general practitioners also noted a high level of concern over litigation.² There is a widespread perception among doctors of a litigation crisis.³

Medical defence organisations report increased notification of incidents each year,⁴ medical defence subscriptions have risen steeply and recent court cases have widened the scope of the doctor's duty of care.

Case law
Rogers v Whitaker extended the duty of care to include the duty to warn the patient of material risks involved in a proposed treatment or procedure.⁵ Materiality of the risk was to be determined, not from the doctor's or the medical profession's point of view, but from the patient's point of view. In Woods v Lowns, the New South Wales Court of Appeal held that a general practitioner breached his duty of care by failing to attend to a stranger in an emergency.⁶ O'Shea v Sullivan and Talbot v Lusby have highlighted the problems associated with delayed diagnosis of cancer.^7,8

Wide reporting of these and other high-profile medical cases have added to the perception that litigation against doctors (particularly negligence actions) is increasing. Doctors are reported to be withdrawing from so-called high risk services, such as obstetrics, and ordering more tests than ordinarily warranted to guard against possible legal action. In the wake of the O'Shea case the Health Insurance Commission has reported a "significant" increase in the ordering of services and tests associated with detection and treatment procedures for cervical cancer.⁹ Defensive medicine is resulting in higher costs and reduced services.

Consumer pressure
Consumer activism since the 1960s has led to the development of laws to allow aggrieved consumers to pursue manufacturers of faulty products and providers of deficient services. This activism is increasingly being directed to the health care sector.

The establishment of various health complaints commissions in the States has provided patients with an accessible mechanism to lodge complaints about their health care. Patients have the means available to lodge complaints and are increasingly likely to do so.

Recent high profile international medical product liability cases (over intrauterine contraceptive devices and breast implants, for example) have also heightened awareness of legal rights and generated new issues, such as the call for patient access to private medical records.¹⁰ Freedom of Information legislation enables patients to access medical records created and held in public hospitals and health care facilities.

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